The End of Democracy?
The Judicial Usurpation of Politics

The Editors

INTRODUCTION

Articles on "judicial arrogance" and the "judicial usurpation of power"
are not new. The following symposium addresses those questions, often in
fresh ways, but also moves beyond them. The symposium is, in part, an
extension of the argument set forth in our May 1996 editorial, "The
Ninth Circuit's Fatal Overreach." The Federal District Court's decision
favoring doctor-assisted suicide, we said, could be fatal not only to
many people who are old, sick, or disabled, but also to popular support
for our present system of government.

This symposium addresses many similarly troubling judicial actions that
add up to an entrenched pattern of government by judges that is nothing
less than the usurpation of politics. The question here explored, in
full awareness of its far-reaching consequences, is whether we have
reached or are reaching the point where conscientious citizens can no
longer give moral assent to the existing regime.

Americans are not accustomed to speaking of a regime. Regimes are what
other nations have. The American tradition abhors the notion of the
rulers and the ruled. We do not live under a government, never
mind under a regime; we are the government. The traditions of
democratic self-governance are powerful in our civics textbooks and in
popular consciousness. This symposium asks whether we may be deceiving
ourselves and, if we are, what are the implications of that self-
deception. By the word "regime" we mean the actual, existing system of
government. The question that is the title of this symposium is in no
way hyperbolic. The subject before us is the end of democracy.

Since the defeat of communism, some have spoken of the end of history.
By that they mean, inter alia, that the great controversies about the
best form of governance are over: there is no alternative to democracy.
Perhaps that, too, is wishful thinking and self-deception. Perhaps the
United States, for so long the primary bearer of the democratic idea,
has itself betrayed that idea and become something else. If so, the
chief evidence of that betrayal is the judicial usurpation of
politics.

Politics, Aristotle teaches, is free persons deliberating the question,
How ought we to order our life together? Democratic politics means that
"the people" deliberate and decide that question. In the American
constitutional order the people do that through debate, elections, and
representative political institutions. But is that true today? Has it
been true for, say, the last fifty years? Is it not in fact the
judiciary that deliberates and answers the really important questions
entailed in the question, How ought we to order our life together? Again
and again, questions that are properly political are legalized, and
even speciously constitutionalized. This symposium is an urgent call for
the repoliticizing of the American regime. Some of the authors fear the
call may come too late.

The emergence of democratic theory and practice has a long and
complicated history, and one can cite many crucial turning points. One
such is the 1604 declaration of Parliament to James I: "The voice of the
people, in the things of their knowledge, is as the voice of God." We
hold that only the voice of God is to be treated as the voice of God,
but with respect to political sovereignty that declaration is a keystone
of democratic government. Washington, Madison, Adams, Franklin,
Jefferson, and the other founders were adamant about the competence-
meaning both the authority and capacity-of the people to govern
themselves. They had no illusions that the people would always decide
rightly, but they would not invest the power to decide in a ruling
elite. The democracy they devised was a republican system of limited
government, with checks and balances, including judicial review, and
representative means for the expression of the voice of the people. But
always the principle was clear: legitimate government is government by
the consent of the governed. The founders called this order an
experiment, and it is in the nature of experiments that they can
fail.

The questions addressed have venerable precedent. The American
experiment intended to remedy the abuses of an earlier regime. The
Declaration of Independence was not addressed to "light and transient
causes" or occasional "evils [that] are sufferable." Rather, it says:
"But when a long train of abuses and usurpations, pursuing invariably
the same Object evinces a design to reduce them under absolute
Despotism, it is their right, it is their duty, to throw off such
Government and to provide new Guards for their future security." The
following essays are certain about the "long train of abuses and
usurpations," and about the prospect-some might say the present reality-
of despotism. Like our authors, we are much less certain about what can
or should be done about it.

The proposition examined in the following articles is this: The
government of the United States of America no longer governs by the
consent of the governed. With respect to the American people, the
judiciary has in effect declared that the most important questions about
how we ought to order our life together are outside the purview of
"things of their knowledge." Not that judges necessarily claim greater
knowledge; they simply claim, and exercise, the power to decide. The
citizens of this democratic republic are deemed to lack the competence
for self-government. The Supreme Court itself-notably in the
Casey decision of 1992-has raised the alarm about the
legitimacy of law in the present regime. Its proposed solution is that
citizens should defer to the decisions of the Court. Our authors do not
consent to that solution. The twelfth Chief Justice of the Supreme
Court, Harlan Fiske Stone (1872-1946), expressed his anxiety: "While
unconstitutional exercise of power by the executive or legislative
branches of the Government is subject to judicial restraint, the only
check upon our own exercise of power is our own sense of restraint." The
courts have not, and perhaps cannot, restrain themselves, and it may be
that in the present regime no other effective restraints are available.
If so, we are witnessing the end of democracy.

As important as democracy is, the symposium addresses another question
still more sobering. Law, as it is presently made by the judiciary, has
declared its independence from morality. Indeed, as explained below,
morality-especially traditional morality, and most especially morality
associated with religion-has been declared legally suspect and a threat
to the public order. Among the most elementary principles of Western
Civilization is the truth that laws which violate the moral law are null
and void and must in conscience be disobeyed. In the past and at
present, this principle has been invoked, on both the right and the
left, by those who are frequently viewed as extremists. It was, however,
the principle invoked by the founders of this nation. It was the
principle invoked by the antislavery movement and, more recently, by
Martin Luther King, Jr. It is the principle invoked today by, among many
others, Pope John Paul II.

In this connection, Professor Robert George of Princeton explores the
significance of the encyclical Evangelium Vitae (The Gospel of
Life). Addressing laws made also by our courts, the Pope declares, "Laws
and decrees enacted in contravention of the moral order, and hence of
the divine will, can have no binding force in conscience. . . . Indeed
such laws undermine the very nature of authority and result in shameful
abuse." We would only add to Professor George's brilliant analysis that
the footnotes to that section of Evangelium Vitae refer to the
1937 encyclical of Pius XI, Mit Brennender Sorge (With Burning
Concern) and other papal statements condemning the crimes of Nazi
Germany. America is not and, please God, will never become Nazi Germany,
but it is only blind hubris that denies it can happen here and, in
peculiarly American ways, may be happening here.

We are prepared for the charge that publishing this symposium is
irresponsibly provocative and even alarmist. Again, it is the Supreme
Court that has raised the question of the legitimacy of its law, and we
do not believe the Pope is an alarmist. We expect there will be others
who, even if they agree with the analysis of the present system, will
respond, So what? Unmoved by the prospect of the end of democracy, and
skeptical about the existence of a moral law, they might say that the
system still "works" to the satisfaction of the great majority and,
niceties about moral legitimacy aside, we will muddle through so long as
that continues to be the case. That, we believe, is a recklessly myopic
response to our present circumstance.

Some of our authors examine possible responses to laws that cannot be
obeyed by conscientious citizens-ranging from noncompliance to
resistance to civil disobedience to morally justified revolution. The
purpose of the symposium is not to advocate these or other steps; it is
an attempt to understand where the existing system may be leading us.
But we need not confine ourselves to speculating about what might happen
in the future. What is happening now is more than disturbing enough.
What is happening now is a growing alienation of millions of Americans
from a government they do not recognize as theirs; what is happening now
is an erosion of moral adherence to this political system.

What are the consequences when many millions of children are told and
come to believe that the government that rules them is morally
illegitimate? Many of us have not been listening to what is more and
more frequently being said by persons of influence and moral authority.
Many examples might be cited. Supreme Court Justice Antonin Scalia in a
recent lecture: "A Christian should not support a government that
suppresses the faith or one that sanctions the taking of an innocent
human life." The Archbishop of Denver in a pastoral letter on recent
court rulings: "The direction of the modern state is against the dignity
of human life. These decisions harbinger a dramatic intensifying of the
conflict between the Catholic Church and governing civil
authorities."

Professor Hittinger observes that the present system "has made what used
to be the most loyal citizens-religious believers-enemies of the common
good whenever their convictions touch upon public things." The American
people are incorrigibly, however confusedly, religious. Tocqueville said
religion is "the first political institution" of American democracy
because it was through religion that Americans are schooled in morality,
the rule of law, and the habits of public duty. What happens to the rule
of law when law is divorced from, indeed pitted against, the first
political institution?

"God and country" is a motto that has in the past come easily, some
would say too easily, to almost all Americans. What are the cultural and
political consequences when many more Americans, perhaps even a
majority, come to the conclusion that the question is "God or
country"? What happens not in "normal" times, when maybe America can
muddle along, but in a time of great economic crisis, or in a time of
war when the youth of another generation are asked to risk their lives
for their country? We do not know what would happen then, and we hope
never to find out.

What is happening now is the displacement of a constitutional order by a
regime that does not have, will not obtain, and cannot command the
consent of the people. If enough people do not care or do not know, that
can be construed as a kind of negative consent, but it is not what the
American people were taught to call government by the consent of the
governed. We hope that more people know and more people care than is
commonly supposed, and that it is not too late for effective recourse to
whatever remedies may be available. It is in the service of that hope
that we publish this symposium.